Regina v Foa [2010] SBCA 1; CA-CRAC 02 of 2010 (26 March 2010)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Mwanesalua, J)
COURT FILE NUMBER:	Criminal Appeal No. 02 of 2010 (An appeal from High Court Criminal Case 256 of 2008)
DATE OF HEARING:	22 March 2010
DATE OF JUDGMENT:	26 March 2010
THE COURT:	Sir Robin Auld P
	McPherson JA
	Williams JA
PARTIES:	REGINA Appellant -V- WILLIE FOA Respondent
ADVOCATES:
Appellant:	Christensen and Kesaka
Respondent:	Cavanagh and Tovosia
KEY WORDS:	Criminal Law – sentence – attempted rape – complainant age 9-10 years respondent 29 years old police officer – Sentence substituted 5 years imprisonment
RESERVED/DISMISSED:	Allowed
PAGES:	5

JUDGMENT OF THE COURT

The respondent was sentenced on 26 February 2010 to 3 years imprisonment after pleading guilty to attempted rape and indecent assault. The sentence was imposed with respect to each charge, the sentences to be served concurrently. The Director of Public Prosecutions has appealed contending that the sentences were manifestly inadequate. The submission was made that the sentencing judge gave too much weight to what he regarded as mitigating factors.

The victim was a pre-pubertal girl age between 9 and 10. The respondent was a 29 year old serving police officer. They were not known to each other prior to 19th May 2008 when the offences occurred.

The respondent was initially charged with rape and after a preliminary hearing, he was committed for trial on 31 August 2008. The matter was listed for trial commencing 1 December 2009, but the matter was adjourned because of a late application by the respondent to exclude alleged admissions. All witnesses, including the complainant child, were ready to give evidence at that time.

The adjourned trial commenced with a voir dire on 8 February 2010. On 17 February 2010 the learned trial judge ruled that the initial record of interview was admissible, but that certain alleged admissions made later should be excluded.

On 17th February the trial proper began with the complainant child giving evidence. At the conclusion of her evidence in chief a submission was made that the respondent would enter a plea of guilty to attempted rape and indecent assault. That was accepted on 18 February on the basis there was doubt on the complainant’s evidence whether there had been penile penetration. After hearing submissions the sentences referred to above were imposed on 26 February 2010.

The medical evidence established that the complainant’s genitals were markedly swollen and bruised, there were bruise marks on the top of both of her thighs, the hymen was ruptured and bruised, and there was some oozing of blood from the vagina. It was not disputed that those injuries were caused by the respondent.

The learned sentencing judge in his sentencing remarks stated the relevant facts as follows:

"The accused...... was at White River..... while..... there he approached the victim......... and gave her money to play a card game. He later called the victim away from her friends and had her go for a walk with him where he bought her twisties chips. Then the accused forced the victim to go with him up to "K Hill" where the offences occurred. On the way he held her hand and then picked her up and carried her when she resisted and refused to go with him. She was crying. He told her to stop and said it was alright. When they arrived at an old roofless building structure he removed the victim’s clothes and forced her to sit on the concrete floor. He then laid her down on her back by the shoulder. He removed his clothes and touched her vagina. He licked it and then inserted his penis into her vagina. He could not achieve penetration as the vagina was too small. He then inserted his smallest right finger into the vagina but it did not go "in too far". After he assaulted her, he held her hand, and they walked back to White River.....He kissed her on the mouth and left her to return to her relatives. ..... In an interview with the police, he denied having sexual intercourse with the victim but admitted to digitally penetrating her vagina. His explanation for his action was, "he wanted to find out if she had sex with other people or not."

In dealing with mitigation the sentencing judge said:

"In deciding the proper sentence to be imposed on the accused the court takes the following mitigating factors in his favour. That he is of previous good character and is a first offender. That he pleaded guilty to his offences when the original rape charge was withdrawn and replaced with the present offences. He is given credit for doing so as it has saved further time and expenses of continuing the trial. That as a man of good character, undergoing his first prison sentences, the conviction and sentences are in themselves substantial punishments..... That the accused has lost his career as a Police Officer. He told the court his offending was due to drunkenness. The court does not take that as a mitigating factor... The court bears in mind that religious programs run to help prisoners in the prison. It is hoped that the accused will take part in them as a way of rehabilitation."

The learned sentencing judge then considered hardship to members of the respondent’s family but appears, correctly, not to have treated that as a mitigating factor in this case.

A number of aggravating matters were finally detailed: the injury to the genitals, the pain felt by the victim, the age disparity, and the respondent’s position of trust as a serving police officer.

In determining sentence for the indecent assault the sentencing judge again referred to the fact the accused penetrated the victim’s vagina "with his small finger to a certain extent."

Counsel for the appellant submitted that in setting out the facts of the offences, the mitigating factors, and the aggravating factors the learned sentencing judge ignored matters established by evidence which made the overall circumstances of the offences more serious. The following matters not specifically referred to by the sentencing judge were clearly established and counsel for the appellant submitted they should be regarded as relevant to the sentencing exercise:

(i) The victim was not known to the respondent prior to the date in question;

(ii) The respondent lied to a passer-by about his intentions when he was seen with the child;

(iii) The respondent used force to remove the victim’s clothing and force to get her to lie down;

(iv) The victim’s evidence was that the respondent used "his hands which he pushed inside her vagina.";

(v) Throughout the incident the victim cried and struggled;

(vi) In his record of interview with police he denied intercourse, admitting only digital penetration. He also claimed the victim followed him, he did not invite her, she was offering herself to him, he did not take her clothes off, and that the victim sat on his thighs;

(vii) The respondent attempted to hide from police when they arrived to arrest him at the police barracks.

In the record of interview the respondent alleged he only inserted his smallest right finger into the victim’s vagina. That was acted upon by the judge notwithstanding other major untruths in the record of interview and the fact it was contrary to the victim’s sworn evidence. The statement by the respondent is not consistent with the injuries to the victim’s vagina; the victim’s evidence is more consistent with the medical evidence and the sentence should reflect that.

It is not necessary for a judge in his sentencing remarks to particularise in detail all matters of aggravation and mitigation when most would have been obvious and the subject of submission by counsel. When a relevant matter has been contested that issue should be specifically addressed by the judge.

The omission of the sentencing judge to specifically refer to the factors particularized by counsel for the appellant does not mean that they were not taken into account. Those matters are relevant to the sentencing process and this court has regard to them as undoubtedly the sentencing judge did.

In Ligiau and Dori (1986) SBHC 15 Daly C.J. approved the statement that for a rape committed by an adult without any aggravating or mitigating circumstances a sentence of 5 years imprisonment should be regarded as the starting point in a contested case. He also approved the statement that the starting point for attempted rape should normally be less than for the completed offence, but attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence.

In that case he sentenced an offender who pleaded guilty to the attempted rape of a 10 year old girl to 5 years imprisonment. The offender’s determined attempt to effect penetration failed because the girl was too small.

This court in Nickson SICOA CRAC No. 11 of 2008 endorsed what was said in Ligiau and Dori, as did this court in Niulifia (2005) SBCA 4.

In Koraua and Kaitira (1988-9) SILR4 this court in considering the appropriate sentence for attempted rape said "no direct proportion can always be kept between sentences for attempts and complete offences because so much depends on the particular circumstances." In that case the complainant had been drinking with the two offenders before the conduct giving rise to the charges. One was sentenced to 4 years imprisonment and the other to three and half years.

Togovi (2009) SBHC 63 concerned the sentence imposed on a 66 years old man for the attempted rape of a seven year old girl. There had been significant delay between offending and arrest, an early plea of guilty and payment of compensation. The life expectancy of the offender was also of significance. The sentence upheld was four years imprisonment.

There are in this case some critical aggravating factors. The respondent was a 29 year old serving police officer who preyed on a 9 -10 year old girl who was not previously known to him. He persisted notwithstanding her crying and struggling and used force to remove her clothing. His attempt at penetration was frustrated by the size of the girl’s vagina. As a result of his overall conduct injury was occasioned to the girl’s genitalia.

The respondent had no previous convictions and had been of good character until commission of the offences. But that mitigating factor was present in all the cases previously referred to. The plea here was late and only came after the complainant had given evidence. True it came when there was doubt on the evidence that penetration had occurred, but the respondent’s lack of remorse is demonstrated by the fact he maintained the complainant was the instigator up until his plea was entered. He is entitled to some concession because of his plea but not to the extent which would follow from an early plea.

When consideration is given to the authorities referred to above a sentence of three years imprisonment for the attempted rape is demonstrably inadequate. The sentence of three years for the attempted rape should be set aside as being manifestly inadequate and a sentence of 5 years imprisonment substituted.

The orders of the court should be:

1. Allow the appeal to the extent of setting aside the sentence of three years imprisonment for attempted rape and substitute a sentence of 5 years imprisonment to commence 26th February 2010.
   
2. The sentences for attempted rape and indecent assault to be served concurrently and days on remand to be deducted.
   

Sir Robin Auld P
President of the Court of Appeal

McPherson JA
Member of the Court of Appeal

Williams JA
Member of the Court of Appeal